IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3924 OF 2013 (MV) BETWEEN:
RAVI S/O. B.A. ASWATHREDDY, AGED ABOUT 30 YEARS, R/AT. YENDRIKALUPALLI, PARAGODU POST, BAGEPALLI TALUK, CHIKKABALLAPURA DISTRICT-561207.
(BY SMT. BHUSHANI KUMAR, ADVOCATE) AND:
1. THE MANAGER NATIONAL INSURANCE COMPANY LTD. NO.15-17-19, 1ST FLOOR, LAKSHMI COMPLEX, ST. MARKS ROAD, BANGALORE-560001.
2. SMT. VENKATAMMA W/O. MUNIYAPPA, DARANALLAPALLI VILLAGE, PATHAPALYA POST, BAGEPALLI TALUK, ... APPELLANT KOLAR DISTRICT-561207. ... RESPONDENTS (BY SRI. E.I. SANMATHI, ADVOCATE FOR R1 R2 – SERVICE OF NOTICE HELD SUFFICIENT V/O DATED 23/8/2019.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.12.2012 PASSED IN MVC NO.1466/2011 ON THE FILE OF THE PRINCIPAL MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation as well as aggrieved by saddling of liability on respondent No.2-owner, under the judgment and award dated 29/12/2012 in M.V.C.No.1466/2011 on the file of the Principal MACT & Chief Judge, Court of Small Causes, Bangalore.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by him in a road traffic accident. It is stated that on 27-2-2011, when the claimant was proceeding in his motorbike No.KA-50-E- 9457, Tractor and Trally bearing No.KA-40-T-6248/6249 came in a rash and negligent manner and dashed against the motorbike of the claimant. As a result, the claimant fell down and sustained grievous injuries. Immediately, he was taken to Government Hospital, Bagepalli and thereafter he was shifted to NIMHANS and Sanjay Gandhi Hospital, Bengaluru. It is stated that he was inpatient for 24 days. Further it is stated that the claimant was an agriculturist and was possessing seven acres of land, by which he was earning more than Rs.8,000/- per month and he was aged about 28 years as on the date of accident.
3. On issuance of notice, respondent No.1-Insurer appeared before the Tribunal and filed its statement of objections denying the material averments of the petition. Further it is contended that the driver of the Tractor and Trally was not holding a valid and effective driving license as on the date of accident but admitted the issuance of policy.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Ex.P-1 to P-13.
On behalf of the respondent-insurer, RW-1 was examined and six documents Ex.R-1 to R-6 were marked.
5. The Tribunal, based on the material placed before it, awarded total compensation of Rs.3,87,093/- with interest at the rate of 6% per annum from the date of petition till the date of realization, on the following heads:
Amount in (Rs.) 1. Injury, pain and sufferings 75,000 2. Medical expenses 78,493 3. Attendant charges 9,000 4. Conveyance charges 3,000 5. Loss of earnings during the period of treatment 6. Loss of earnings on account of disability 18,000 1,83,600 7. Future medical expenditure 20,000 Total 3,87,093 While awarding compensation, the Tribunal assessed the notional income of the claimant at Rs.4,500/- per month and whole body disability at 20%. The claimant not being satisfied with the quantum of compensation as well as saddling the liability on respondent No.2-owner, is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.1-Insurance Company. Respondent No.2-owner was served by way of paper publication but remained absent. Perused the material placed on record.
7. Learned counsel for the appellant would submit that the accident is of the year 2011 and the income of the claimant assessed by the Tribunal at Rs.4,500/-, is on the lower side. She further submits that the claimant was possessing seven acres of land and was earning more than Rs.8,000/- per month as an agriculturist. It is her further submission that the driver of the Tractor and Trally was holding LMV license and as such, the liability could not have been saddled on respondent No.2-owner of the Tractor and Trally in view of the decision of the Hon’ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663. Thus, prayed to allow the appeal.
8. Per contra, learned counsel for respondent No.1– Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that the compensation awarded on the various heads are on the higher side. It is his further submission that the driver of the offending Tractor and Trally was not holding a license to drive the transport vehicle. As such, the Tribunal rightly saddled the liability on respondent No.2-owner. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material placed on record, the following points arise for consideration in the facts and circumstances of the case in this appeal.
1. Whether the income of the claimant assessed by the Tribunal at Rs.4,500/- per month is on the lower side?
2. Whether the Tribunal is justified in saddling the liability on respondent No.2-owner?
Answer to the above points is in the negative for the following reasons.
10. The accident involving motorbike No.KA-50-E-9457, Tractor and Trally bearing No.KA-40-T-6248/6249 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The appeal is for enhancement of compensation by the claimant. The accident is of the year 2011. The claimant states that he was possessing seven acres of irrigated land, by which he was earning more than Rs.8,000/- per month. No material was placed before the Tribunal to indicate the exact income of the claimant. Ex.P-6-RTC extract was produced to show that the claimant was possessing land but the same would not be sufficient to assess the income of the claimant. In the absence of the material to indicate the exact income of the claimant, the income will have to be assessed notionally. The Tribunal assessed the income of the claimant notionally at Rs.4,500/- per month, which is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally assess the notional income for the accidents of the year 2011 at Rs.6,500/-. In the present case also in the absence of any document/material to indicate the exact income of the claimant, it would be appropriate to take Rs.6,500/- per month as notional income of the claimant for determination of the compensation.
11. The claimant was inpatient for 24 days for the accidental injuries suffered by him. Initially, he was treated at Government Hospital, Bagepalli and thereafter he was shifted to NIMHANS and Sanjay Gandhi Hospital, Bengaluru. The claimant was aged 28 years as on the date of accident and he was resident of Bagepalli Taluk. The compensation awarded on the heads of ‘Conveyance charges’ and ‘Attendant charges’ are on the lower side. Taking note of the fact that the claimant was inpatient for 24 days and has suffered 20% whole body disability, the claimant would be entitled for Rs.20,000/- on the head of ‘Attendant charges’ including Rs.9,000/- awarded by the Tribunal. Further, the claimant would be entitled for Rs.15,000/- on the head of ‘Conveyance charges’ including Rs.3,000/- awarded by the Tribunal.
12. The Tribunal saddled the liability on respondent No.2-owner on the ground that the driver of the Tractor and Trally had no valid and effective driving license to drive the Tractor and Trally as on the date of the accident. But it seen that the driver of the Tractor and Trally had LMV license to drive the same. Ex.R-2 is the DL extract produced by the insurer, which indicates that the driver of the offending Tractor and Trally was possessing LMV license. The driver who possesses driving license to drive light motor vehicle-NT could also drive transport vehicle of light motor vehicle category as held by the Hon’ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663. Following the said decision, the liability saddled on respondent No.2-owner is shifted to respondent No.1-Insurer. The insurer is liable to indemnify the compensation awarded. The compensation awarded on the other heads except ‘Attendant charges’, ‘Conveyance charges’, ‘Loss of earning on account of disability’ and ‘Loss of earnings during the period of treatment’, there would be no change and remains intact. Thus, the claimant-appellant would be entitled for modified enhanced
period of treatment (6500x4) 6. Loss of earnings on account of disability (6500x12x17x20/100=265200) 2,65,200 7. Future medical expenditure 20,000 Total 4,99,693 13. Thus, the claimant would be entitled for enhanced modified compensation of Rs.4,99,693/- as against Rs.3,87,093/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal. The insurer is directed to deposit the compensation amount within six weeks from the date of receipt of the copy of the judgment.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, appeal is allowed in part.
Sd/- JUDGE SMJ